New Prop 8 challenge from … Ted Olson?
posted at 10:12 am on May 27, 2009 by Ed Morrissey
After yesterday’s ruling from the California Supreme Court upholding Proposition 8′s ban on gay marriage but allowing the already-existing gay marriages to remain legal, I predicted that an inventive attorney would attack the judgment in federal court on equal-protection arguments arising from that Solomonic split. That challenge came more quickly than even I predicted, and from an unusual choice of attorneys. Byron York profiles Ted Olson’s decision to make a federal case out of Prop 8:
The suit argues that the state’s marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies — who argued against Olson in the Bush v. Gore case — will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.
The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided. …
I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”
This gets us back to whether a ban on same-gender marriage is discriminatory. Opponents of same-sex marriage argue that each individual has the same rights as everyone else, since the state does not bar any man from marrying any woman, outside of consanguinuity, current marital status, and age of consent. Proponents, such as Olson, argue that it equates to the ban on interracial marriage, but that actually did treat people differently based on ethnicity rather than gender. It’s a specious argument, perhaps best demonstrated by the enormous opposition to gay marriage in the African-American community.
However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.
If I had to guess, I’d bet that the federal courts will punt on the matter entirely, leaving the California decision to stand on its own. They will have to recognize that the people of California amended their own Constitution to restore a definition of state-recognized marriage that was the norm for more than 200 years. They’re not going to be eager to invalidate an election, especially to force the same people to give government recognition to same-sex marriages when they’ve expressly mandated the opposite.
Having Ted Olson head this plaintiff’s legal team, along with David Boies, will certainly give some conservatives considerable pause. He’s been a hero to the Right, so much so that Rudy Giuliani tapped him for the presidential campaign to give himself credibility on judicial restraint. What happens to Olson’s standing now?
Blowback
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Being a black guy and wanting to marry their daughter might not turn out too well either.
dedalus on May 27, 2009 at 12:55 PM
Interesting break down.
Just don’t omit the fetish to argue and win in the Supreme Court. The case must be something to top off having been Solicitor General, fame and all.
As far a his psychological rationale for this move, exactly what religious affiliations has Ted Olson in his background?
maverick muse on May 27, 2009 at 12:58 PM
Bypassing the Constitution?
The Declaration of Independence has also been given status as a founding legal document. It guarantees our “pursuit of happiness.”
What does the “pursuit of happiness” mean if it does not confer the ability to determine the major building blocks of one’s own life? What decision do we make that is more central to our happiness and sense of who we are than our choice of lifetime partner?
I would guess that most of you opposed to gay marriage are also opposed to gay promiscuity. If you want to deny promiscuity, aren’t we bound to offer a way to sanctify long-term relationships? If you prefer to bar sanctified long-term relationships, aren’t we required to tolerate promiscuous sex? Or do we really feel privileged to whipsaw people no matter what their choice?
Chaz on May 27, 2009 at 1:04 PM
Getting even for having been passed by.
maverick muse on May 27, 2009 at 1:05 PM
Esthier: I’m LDS. I have ancestors who were jailed, etc. for being Polygamous. There is plenty of precedent: Reynolds v. United States quite clearly says that the government can control marriage.
Our church went through hell–much more than anything gays have suffered. We lost plenty of rights–including the right to vote and spousal immunities. Lots of wives were forced to testify against their husbands, which as far as I know is the only time in US history an entire group lost that right.
But marriage was still between a man and a woman. In fact, the vast majority of Mormons were not polygamous (and of those that were, the majority of them had two wives and no more), and no shame or dishonor attached to them. Polygamy (as practiced by my ancestors) was very carefully controlled. As the people pointed out then, it was better to have polygamy openly than as practiced by others then–illegally or as serial monogamy.
Polygamy still has a rational basis–it can, if done right, promote healthy families and also allow for more children in a stable household. A huge chunk of the descendants of those early polygamist families are productive, contributing leaders today.
What I’m saying is that there is no rational basis for gay marriage. What’s the point? No family, no descendants except some adoption thing, and it’s all about being “in love.” Well, being in love doesn’t last without work, and marriages are designed to provide a stable family and child rearing environment. Plus, having kids tends to make people put more into their relationship–at least, it should. No fault divorce really should be repealed. We can see the fruits of that now…. marriage was changed from families to being “all about me.” No wonder gays can make their arguments.
Vanceone on May 27, 2009 at 1:06 PM
Polygamy probably functions better in a tribal culture. Perhaps if a high percentage of young males are killed due to frequent combat it becomes advisable.
In the U.S. multiple wives are OK as long as they aren’t concurrent. Some guys trade in for a younger one periodically. At least the first wife gets to split with her share of assets rather than hang around as part of a harem where the husband owns all the property.
dedalus on May 27, 2009 at 1:06 PM
Chaz, please answer this question directly. If someone is in love with sibling and wants to marry them, should they be deprived of that happiness? If a man needs 2 wives to be happy, should he be denied that happiness?
frank63 on May 27, 2009 at 1:08 PM
Like after the world wars?
That seems logical to me. If the US was able at that time to say that it can say exactly what marriage is, then I don’t see why homosexuality should be any different.
Esthier on May 27, 2009 at 1:10 PM
That’s the revisionist line.
maverick muse on May 27, 2009 at 1:10 PM
frank63 said: “Chaz, please answer this question directly.”
I am, Frank. By bringing up side issues, you are the one skirting the topic. If another thread starts on those topics, I might just join in.
Chaz on May 27, 2009 at 1:11 PM
This lawsuit news will soon disappear. If not, and the Supreme Court takes the case, the SSM folks will suffer a stinging constitutional defeat. There’s no there there. Be careful what you wish for folks. I’m guessing that the SSM tide was running at the full until yesterday and now not so much.
Mason on May 27, 2009 at 1:11 PM
Courts regularly listen to expert testimony.
With polygamy there is a big difference between being an equal partner and a minority partner to a contract.
dedalus on May 27, 2009 at 1:13 PM
Esthier on May 27, 2009 at 1:10 PM
That would be logical.
But if the current president is able to deny what the Constitution demands, it being the founding document, then what’s to hold a government from any about face in law and practice?
maverick muse on May 27, 2009 at 1:14 PM
But that also is missing here. There is no consensus, nothing scientific to point to.
I see no reason why all can’t be equal partners.
Esthier on May 27, 2009 at 1:15 PM
Perhaps. It seems probable that a large deficit of males would cause many of them to take multiple women.
dedalus on May 27, 2009 at 1:16 PM
In that case the marriage would need to be effectively dissolved anytime one of the partners decided to leave. Assets would need to be liquidated and the partners paid out.
dedalus on May 27, 2009 at 1:20 PM
That’s not how it works when one partner in a company is ready to leave. The unit buys the other out, while continuing the company as is. I see no reason why this couldn’t work for marriage as well.
Esthier on May 27, 2009 at 1:22 PM
That’s why there isn’t one blanket state contract for corporate partnerships.
dedalus on May 27, 2009 at 1:25 PM
Er .. normal marriage is not an equal partnership. There are two different sexes involved which means that they are not able to do the same things. Only the woman can give birth. Because of this, women usually get custody of the children in divorce, and we all accept this inequality because it is part of the NATURAL inequality between the sexes.
Only in a gay marriage is there some concept of both partners being exactly the same and that is something totally new that no society has ever dealt with.
progressoverpeace on May 27, 2009 at 1:27 PM
This illustrates their defective argument perfectly. The homosexual lobby (and they hate it when you point out there is one) doesn’t want to legalize polygamy, incest, or bestiality any more than we do.
They just want THEIR pet deviancy institutionalized. But what you point out shows that their argument for homosexual marriage is riding on the same argument (to a degree) that we argue against it, they argue that homosexuality is “normal”. We argue that marriage between a man and a woman is what is normal because that produces families.
The crux of the matter is that unless the homosexual lobby ALSO takes up the cause of marriage rights for incest, polygamy, etc they aren’t arguing for “equal protection” in an absolute way but a selfish selective way.
The reason why they don’t do this is they obviously don’t want homosexuality to be equated to incest and polygamy. Which it is, none of those types of relationships are normal or healthy. Incest produces defective children. polygamy opresses women. And, homosexuals rarely live to the average life expectancy, a fact that is often concealed but true.
wildcat84 on May 27, 2009 at 1:34 PM
The woman is more likely to get the kids–but the role each partner plays has an effect. A stay-at-home dad married to a career mom might get custody.
The equality I was referring to was the legal status that currently allows either husband or wife to independently void the marriage contract.
dedalus on May 27, 2009 at 1:40 PM
Which is a right that is on the decline world wide as the ROP and it’s barbaric sharia “law” which defines wives and daughters as chattel starts to trump hard won Western traditions built on the advances of Christianity and influenced by Greco-Roman traditions.
This is why the women’s rights groups (if they were actually interested in actual women’s rights instead of protecting their lucrative abortion business) should be all over this and against it, but aren’t. You never hear any criticism of how the ROP treats women from them.
wildcat84 on May 27, 2009 at 1:45 PM
I’m back… Darn, I’m not going to get anything done today.
First, yes, I did cite Reynolds… It would appear the Strangelet Logic of progress, progress, oh, wait, not progress is flawed. Further, it would appear that the federal government has gotten involved with marriage in the past… Reynolds is what it is. Both a blow to polygamists and a potential blow to SSMists… I would say Roe vs Wade is a blow to pro-lifers and a potential blow to those against cloning…
Yes, married guys might be attracted to other women, but do they want to marry them? There is a difference (at least in theory) between a polygamist and a man that simply wants more sex.
Finally, although certain things may have been er changed (with respect to polygamy), this doesn’t mean they can’t change again. So Polygamy might come back swinging. I see no reason to stop it if we are going to allow SSM.
Upstater85 on May 27, 2009 at 1:50 PM
Kind of like a business agreement…
Upstater85 on May 27, 2009 at 1:50 PM
Why wasn’t this a requirement for race mixers? Isn’t divorce functionally much closer to polygamy than gay relationships?
dedalus on May 27, 2009 at 1:52 PM
That’s the whole point. If you want to use the “Love, Love, and some more Love” argument, more should have been done.
Upstater85 on May 27, 2009 at 1:54 PM
Except capitalism thrives on the creative destruction of businesses. That dynamic doesn’t work as well when the entity is a family that has to get the kids ready for school every morning.
dedalus on May 27, 2009 at 1:55 PM
But the love, love, love was part of Loving.
dedalus on May 27, 2009 at 1:56 PM
What topic am I skirting? You made the claim that the “pursuit of happiness” means that everyone has a right to be with whomever they love. I am asking you if you are ready to follow that argument where it logically leads and that is that EVERYONE, including pedophiles, polygamists and those who commit incest have a right to be with their object of love too. You have every right not to answer my questions if you so choose but please don’t sidestep this by acting as if I suddenly went off topic…I’m just responding to an issue you brought up.
frank63 on May 27, 2009 at 1:58 PM
Getting kids ready for school every morning should have no influence on the fairness of calling love marriage.
What if certain states don’t let gays adopt? Does this mean they somehow wouldn’t have the same level of marriage/love?
Finally, it is called a license. It is issued from the government. Even you are saying that financial issues should be taken into account. If this is so, marriage really isn’t so different than a business – perhaps a daycare or even better, a school (since we are ceding parenting rights to them anyway…).
Upstater85 on May 27, 2009 at 1:58 PM
Yes, it was… I guess the only argument to made as to why SSM, Polygamy, Incest, and BDSM weren’t automatically “protected” was because of the current social norms… So, Loving might not be so much a mandate of the Constitution as it is a mandate from the people… Either that, or the logic in Loving was flawed and they were being hypocritical.
Upstater85 on May 27, 2009 at 2:01 PM
I’m saying that a state can make a case that polygamy leads to family instability that would eventually cause a burden on the state and community. Whereas legally recognizing a gay couple’s relationship can add to the stability of their house and children.
dedalus on May 27, 2009 at 2:02 PM
That’s your claim. I haven’t seen the argument. Even if we saw a sampling of that argument, I doubt many people are going to agree with you.
Upstater85 on May 27, 2009 at 2:03 PM
Further, there is a historical record that shows that polygamy didn’t necessarily rip down all social stability. On the contrary, the “family values” in the middle east seem to be fairly strong.
Upstater85 on May 27, 2009 at 2:04 PM
Regardless the criteria the court would consider is different for SSM vs Poly. It is already established that the states are restricted in their ability to define marriage. The polygamists can make their case independent of SSM, unless they are gay polygamists.
dedalus on May 27, 2009 at 2:06 PM
Perhaps it works well within a cohesive religious community.
dedalus on May 27, 2009 at 2:07 PM
No, no regardless. You made a claim.
Yes, the polygamists can also make a case more or less independent of SSM that they should be allowed to have legally recognized marriages… That said, if they were granted this, then I think the SSM movement would also need to be granted this. Especially if the argument is the same as Olson’s.
Upstater85 on May 27, 2009 at 2:09 PM
Yes, Polygamy does tend to be practiced in cohesive religious communities. That said, there still doesn’t appear to be any evidence that Polygamy is more detrimental to society than gay marriage or divorce.
Upstater85 on May 27, 2009 at 2:10 PM
Yes, the court found the right to mixed marriages only in 1967. The Constitution didn’t change since Plessy, but the culture and the judges had.
I’m not entirely comfortable with Loving, but the court has cited it as precedence in subsequent rulings–though with dissents.
dedalus on May 27, 2009 at 2:11 PM
One (my personal favorite) argument, would be to simply get the government out of defining marriage.
One can’t make the argument that social norms don’t matter and the Constitution guarantees these rights, when one is only willing to give these rights to a SLIGHTLY larger class of people.
Upstater85 on May 27, 2009 at 2:18 PM
Somebody please tell me how a gay couple getting married affects my marriage in any way.
44Magnum on May 27, 2009 at 2:19 PM
Yes regardless. My point is that a state has to show compelling state interest in creating marriage restrictions. Those arguments for the compelling interest is different in each case for SSM and polygamy. In response to another comment I offered my thoughts on an argument the state might make against polygamy–it might be right or wrong but it is unrelated to SSM. SSM and polygamy will clearly impact society in different ways.
dedalus on May 27, 2009 at 2:21 PM
frank 63 said:
These are side issues because when you introduce minors and public health concerns, it changes the discussion from the clearer case of consenting adults. Just in case you are confused, gays, polyandrists and close relatives already enjoy the right to “be with” each other. The question is about sanctified long-term relationships.
Chaz on May 27, 2009 at 2:22 PM
I recognize your point and, perhaps, it is related to some of my discomfort with Loving. The idea that the marriage is a government right to be weighed by the court according to its observations about societal norms is troubling. Having the government step further back would be my preference.
dedalus on May 27, 2009 at 2:26 PM
OK, fine, regardless or not. Why do you think that Polygamy is more detrimental to society than gay marriage? Where’s your evidence?
Again, what are these compelling interests that you keep talking about but don’t directly mention?
Again how does polygamy clearly impact society in different ways? How does it differ than say gay marriage? I’m sure someone use to say that clearly mixing the races impacts society in a negative way…
Upstater85 on May 27, 2009 at 2:26 PM
So instead of arguing over who gets to be in Olson’s “THIS CATEGORY,” why don’t we (together) push for the government to more or less but out?
Upstater85 on May 27, 2009 at 2:28 PM
*but = butt
Upstater85 on May 27, 2009 at 2:28 PM
The questions I originally asked you were related to incest and polygamy. Both of these can happen between consenting adults, so how can you say I’m changing the discussion away from “the clearer case of consenting adults”?
I have no idea what your point is here. Yes, you’re correct that all these alternative partnerships can be available without marriage. The question is do all of them have a right to be sanctioned by government. If some do and some don’t, then why?
You don’t seem to want to address my questions head on. If that’s the case that’s fine, perhaps we should just drop this side discussion.
frank63 on May 27, 2009 at 2:37 PM
History is a good teacher. In the past, societies that have come to broadly accept homosexuality and to formally condone it have ended up on a very slippery slope. Sex between children and adults was not far behind. Sex between humans and animals increased dramatically. All forms of sexual perversion were tolerated, encouraged and ultimately imposed within these societies as lust consumed the majority of the citizens within them. If this is the future that you want for America, then I guess increasing the legitimacy of homosexuality by adding homosexuals to the definition of marriage is no big deal. I’ve heard many say that it will end with this “final” accommodation by society. But, I fail to see how we will be different than the other societies that went down this path. Ask yourself honestly. Do you want your children or grandchildren to live in a version of America where pedophilia is not only tolerated but condoned? Do you want them to live in a country where all sexual mores at stripped from our public and personal lives? If you are like me, such a world is horrifying to think of. Our society has already headed down the slippery slope by creating too much legitimacy for homosexual practices. If we allow further erosion of the principles that make us a moral and civilized people, we will have no one to blame but ourselves when the consequences come. So, we can either continue to lie to ourselves in a vain attempt to avert the consequences that history has taught us will happen. Or, we can draw a line in the sand and refuse to allow the further moral decay that leads us there. It’s our choice.
NuclearPhysicist on May 27, 2009 at 2:47 PM
Yes, they did and the argument had merit for a long time. Race mixing was going to destroy the culture as they knew it, and it did. Most of us agree it was for the better.
When mixed marriages were OK’d it didn’t invalidate all arguments against SSM. In fact, nearly everyone opposed to SSM favors mixed race marriages.
Similarly people can be in favor of mixed marriages and SSM but against polygamous marriages.
Off the top of my head, arguments against polygamy that don’t apply to SSM.
–Creates shortage of available women in society and increased competition.
–Jealousy is destabilizing influence when partners within the marriage are in sexual competition with each other.
–Citizenship rights can be more easily abused as marriage is no longer exclusive.
–Homes that are structured with one male wage-earner and multiple dependent wives are more financially precarious.
–Courts are more likely to be burdened with novel legal disputes that arise out of internal family disagreements.
–”divorce” of one spouse can cause essential assets (i.e., the house) to be liquidated thereby forcing children out of school or creating other disruptions.
dedalus on May 27, 2009 at 2:54 PM
First of all, you are guaranteed the pursuit of happiness, provided you play by the same laws that everyone else does.
California now has a Constitutional Amendment that defines marriage as between one man and one woman. It does not differentiate based on race or religion. If you are male, you are free to marry a female. If you are female, you are free to marry a male. Thus, THE LAW IS APPLIED EQUALLY.
And I wouldn’t get your “panties in a twist” over the Declaration of Independence… after all, us Conservatives have had to deal with Liberals trampling all over these rights by ignoring the explicitly stated RIGHT TO LIFE!
dominigan on May 27, 2009 at 2:54 PM
So does homosexual marriage.
Who says they’re in competition?
It would be no different than the potential for abuse in any other relationship.
So are households with one earner and several children. Yet we have no laws against that.
Is the only problem the novelty of it? Courts deal with these issues all the time, often without a marriage.
This is true of any divorce. Why should it be any worse in a polygamous relationship where the children would still have a mother and a father?
Esthier on May 27, 2009 at 3:02 PM
This seems the most logical to me. Forget government recognized marriages altogether. I certainly don’t need it and don’t see how it does much for the country anymore.
Esthier on May 27, 2009 at 3:05 PM
They would have also argued that it was going to destroy the culture as they new it and make it worse… NOT better.
No, it didn’t. I never claimed this.
Apparently. But then again, the will of the people isn’t really what Olson is taking into consideration.
Really? Why would you assume only women would come in multiples? Perhaps among the religious community. Further, not allowing polygamy simply for the fear of too much competition among men is similar to the reasoning used for say the one child policy in China – people are afraid of overpopulation.
Same can be said of gay marriage AND traditional marriage as a whole. You can still divorce and move onto the next immigrant.
Since when do we worry about the finances of families? If this is what they want, they will have to make it work.
This is what the courts were set up for. They can throw out the cases that are ridiculous and they must take the ones that aren’t. Perhaps we shouldn’t let people prone to divorce (however we determine that) to marry.
This has already been addressed. It’s the same as people getting divorces. Further, it is discriminatory to simply not allow polygamists to marry simply because they might affect more than 2 people. This happens in general divorce cases. Further, if divorce only affected the other spouse, the point is, it only would affect the person that knowingly went into this contract. The other partners would be affected, but they were fully aware of this coming into a polygamist marriage.
Upstater85 on May 27, 2009 at 3:06 PM
being gay and being raised in a religious family, I have always thought this was the crux of the issue. You shouldn’t not condemn the people trying to fix the problem that you so loudly proclaim as the root perversion among gays, namely the perception and glorification of promiscuity. Most gays are not complete sluts but many are, most of them roam the gay ghettos with the expectation of one night stands and loose relationships. But if you change the cultural paradigm and expectations. than those gays being raised with expectations of monogamy or at least long term relationships would be less inclined to risk the social disapproval of their families.
Sadly it’s all just a red herring, most opposed to gay marriage just don’t like gays. And yes I know there are both gays and straights that don’t believe in the concept of gay marriage but I am not one of them.
Zekecorlain on May 27, 2009 at 3:06 PM
Ah… good point. If we don’t allow polygamy because of the “damages” it could do, then perhaps we shouldn’t allow people to have sex outside of marriage.
Upstater85 on May 27, 2009 at 3:07 PM
This is illogical. First, a legally recognized marriage can do and say nothing of promiscuity. Adultery has long been legal in this country and is often flaunted with blatant disregard for how their behavior is seen. There are now even dating sites catering specifically to married people.
And if what you say is true, that people opposing gay marriage are more concerned with the promiscuity, then surely they don’t believe marriage will tame promiscuous gays but rather distort marriage into something they don’t want it to me, giving acceptance to promiscuity within marriage.
Besides, and I mean this of all relationships, if you need the government to make it hard on you to leave before you’ll commit to someone for life, then you shouldn’t be getting married in the first place, because marriage won’t change you. If gays are more promiscuous, then they’ll still be more promiscuous inside their own marriages.
Esthier on May 27, 2009 at 3:16 PM
Yes, except polygamy might exponentially increase the odds of a kid having his life upended by divorce. It only requires one of his father’s several wives to seek a divorce and the house gets sold.
My points are all from the one male/multiple females perspective. This is the most common arrangement. Others would be legally possible but for the sake of brevity I’ll stick with this one approach.
dedalus on May 27, 2009 at 3:16 PM
Yes, but so do people who have already divorced. If we allow them to get married again, knowing it exponentially increases the children’s odds for having to deal with a divorce, then why should polygamists be any different.
Esthier on May 27, 2009 at 3:22 PM
First, for each child, it’s not an exponential increase. It would only be a factor of n increase (n+1 being the number of parents). Further, how high is the divorce rate among polygamists? It doesn’t really matter. It doesn’t affect the selective reasoning of the SSM-movement. However, if we are going to worry about how everything is going to affect society and literally make our decisions based on statistics, then we might have to not allow people of certain backgrounds (including homosexuals) to marry.
But why stop at marriage. If you are a “high” risk parent, then maybe we shouldn’t let you produce.
OK, I understand that these special cases can get tedious, but then again, we would have to be fair to all groups. Even the bisexuals (that might have more men than women).
Upstater85 on May 27, 2009 at 3:24 PM
Courts seldom have to deal with spouses suing each other over ownership of assets–aside from divorce. In a polygamous arrangement you would tend to have multiple wives competing with each other for the benefit of their kids. Each wife would have incentive to prioritize her children over the children that are not biologically hers.
Perhaps the husband decides to pay for private school for his first family but not his third or fourth? What if he wants a fifth wife to which 2 wives say great and 2 wives say no way? Does he have to get a unanimous vote, a simple majority? By default does wife number 5 get an equal stake in the family assets or does she have to earn-in over a period of years?
dedalus on May 27, 2009 at 3:26 PM
I don’t know but we’ve had no-fault divorce for decades without slipping down the slope toward a serious polygamy movement.
dedalus on May 27, 2009 at 3:28 PM
Wow! America’s biggest project now seems to be articulating self-absorbed ridiculous claim of oppression but this Mormon insanity is among the best. Al Sharpton is just left in the dust! Historically, gay people have been terribly oppressed in America: killed, tortured, and committed to insane asylums for who they have been. And there was no Utah to which they could flee.
thuja on May 27, 2009 at 3:29 PM
First, I can only see this actually happening if there was a divorce. Even in straight 2 partner divorces, these issues are going to arise.
What about adopted parents vs. biological parents? The court “wastes” their time with these issues all the time.
And what would you say about a father sending (against the wishes of his single wife) one child to a private school and another to a public school. This is for the family to decide. If the wife doesn’t like this, she can legally leave the marriage and then try to get custody of her child.
I don’t see how the number of partners would change this much. Yes, more people would be involved… go back up to biological vs adopted parents (that’s at least 4 parents) + grandparents…
Upstater85 on May 27, 2009 at 3:31 PM
See, and this is why I actually object to you looking at this only from the perspective of the male with several wives. It distorts the conversation into one about inequality where none need be addressed for the purposes of this conversation.
For one, women can work in this country, and just because they’re married to one man, it doesn’t mean he has to make all the money and decide to or not to send kids to private school.
But if he’s that kind of a prick, he can be so, even with just one wife. And what can the children do when they aren’t favored? Well, in the Bible, they sold the favorite into slavery. Obviously not ideal, but then neither is playing favorites with your kids.
What we’re talking about is a contract between equal partners. With that being the case, how they arrange things like additional partners, is how they arrange things. It need not be put into law. It’s still no more complicated than starting a corporation.
Esthier on May 27, 2009 at 3:32 PM
Doesn’t mean they weren’t persecuted. It also doesn’t mean Christians weren’t persecuted by the Mormons.
Upstater85 on May 27, 2009 at 3:33 PM
That’s because the two are not analogous. One involves destroying a union, the other creating one.
To be fair, I believe he’s talking about how they were treated by the government (though Mormons were at one point also violently killed in America), and on that, he’s correct. Gays have never been denied rights by the federal government.
Esthier on May 27, 2009 at 3:35 PM
Thank you Esthier. I see Vanceone is here speaking the real as well. To bring greater clarity, I would like to know of ONE person that has been imprisioned by the Federal Government for having a homosexual relationship?
I know of one person that comes to mind who did TIME for his polygamous relationship, George Reynolds. How do I know of him, because he’s my wife’s great grandfather – oh the pain and suffering he endured at the hand of our lovely government. Gays ain’t got nothing on that man.
SkinnerVic on May 27, 2009 at 3:52 PM
When will they invoke his name to get their rights? Not until they start actually approaching the issue with equality in mind.
Upstater85 on May 27, 2009 at 3:57 PM
Perhaps, you did read carefully what I had to say. My major point is the idea that the oppression of Mormons in America has been worst than the oppression of gays is just ridiculous. My other point–which I didn’t state explicitly–is that it is absurd to bring up the issue of 19th century oppression, since we happen to be living in the 21st century.
thuja on May 27, 2009 at 4:01 PM
I don’t know that the federal government ever had a ban on sodomy, but the states did, and homosexuals were arrested based on that law.
http://en.wikipedia.org/wiki/Lawrence_v._Texas#Arrest_of_Lawrence_and_Garner
What a small world. Crazy.
Esthier on May 27, 2009 at 4:05 PM
Slavery didn’t happen in the 21st century. The Holocaust didn’t either. So these topics are somehow irrelevant? Further, look at Esthier’s point. When has the government forced gays to become un-gay in order to be United States citizens (no, the military doesn’t count, because you can still be a citizen)?
Upstater85 on May 27, 2009 at 4:09 PM
True. The 21st century isn’t even old enough for a drink.
Esthier on May 27, 2009 at 4:16 PM
Yes, thuja…. I so remember reading about the pitched battles where gays were killed with massed volleys of rifle fire. I remember reading about the infamous “Kill em all” order that ordered state military people to literally exterminate gays and drive them out of the state. I recall most vividly the time when gays lost the right to vote simply because they were gay. I recall groups of gays fleeing the country because of official state policy. Those thousands of graves along trails of gays dying from exposure, disease (well, okay–there ARE thousands of gays dying from unlimited promiscuous sex and the resultant STD’s–I’ll grant them that).
Yeppers, Gays are SOOOO oppressed in this country! When did the US military actually receive orders to invade a gay community, and commit over a quarter of the entire military to the process?
Please, Thuja: Enlighten me as to how gays have suffered all these things. When there were manhunts searching communities for them to throw them in jail. What rights did gays lose because of being gay that the Mormons lost in THEIR struggle for acceptance?
Oh, yeah–none. No gay has been denied the right to vote, to hold property, or had their buildings seized and confiscated without repayment because of them being gay.
And your weak copout of ‘it’s the 21st century, not the 19th!’ is moronic, simply because you and your people are trying your best to bring back those punishments–official government punishments, I might add, not “vigilante” groups– for Mormons now.
Vanceone on May 27, 2009 at 4:17 PM
Further, I might add to Esthier’s point about arrests: True, sodomy did get some people arrested. But that was because they committed the crime. Mormons were hunted by virtue of them being Mormon, not necessarily because of doing the crime (polygamy, in this case). Thousands of women faced the choice of testifying, turning in their families, or going to jail–regardless of whether they were in a polygamous family or not.
Vanceone on May 27, 2009 at 4:20 PM
What were they testifying about?
Esthier on May 27, 2009 at 4:22 PM
What a peculiarly unfair comparison. I strongly support state rights. In that limited sense, it is appropriate that oppression of gay people has historically been left to state governments and not to the federal government.
On the other hand, there was America’s Ayotollah, Anthony Comstock, who effectively suppressed all discussion of homosexuality in the period after the Civil War to the early years of the 20th century. And I going to out on a limb and guess that some gay people in the military have faced brutal punishment because they made love–which is the federal government punishing someone for being gay.
thuja on May 27, 2009 at 4:26 PM
?????
Upstater85 on May 27, 2009 at 4:37 PM
Esthier: Mormon women in the late 1870s/80/s were frequently hauled to court and told they had to testify on whether they were in a polygamist relationship–in order to convict their husbands. Spousal immunity, a longheld legal doctrine where you don’t force a spouse to testify against the other, was ignored. So women either faced the choice to send their husband to jail or go to jail themselves, and leave their children without a parent.
Even women who weren’t married legally (i.e. by the state, only by the church) were still being told to testify and turn in their “spiritual husbands” or else.
This extended to “evidence of cohabitation” too. A practice perfectly legal in the rest of the country–man stays over at woman’s house he technically is not married to–was viewed as evidence of polygamy and could land you in jail.
You really should read up on what the federal government did to Utah and the Mormon church in the late 1800′s. In many ways, it reads like it comes from 1930′s Germany and the Jews.
Thuja is also trying to claim that states are worse; while ignoring that the only official genocide order ever issued by an elected american politician was against the Mormons by a state governor, who then promptly tried to enforce it.
Vanceone on May 27, 2009 at 4:46 PM
Oh… Wait… my fave excuse….”The pubic didn’t have a full understanding of what they were voting for… or against…
CynicalOptimist on May 27, 2009 at 4:54 PM
Some issues cross over the “Right Left” political banter.
Abortion is one of those also.
Sometimes someone just thinks some thing is right or wrong based on his/her perception.
It is an opinion, just his opinion…not a “left” opinion, just his opinion.
right2bright on May 27, 2009 at 5:03 PM
They’re forcing this issue down our throa…. er… uh… yeah…
CynicalOptimist on May 27, 2009 at 5:17 PM
Before you make statements, you may want to check if them for accuracy. Gay people have been murdered by the states for their sexuality. They have been castrated. They have been thrown in prison. They have been thrown into asylums. In fact, some people may remember the time before 2003 when the Supreme Court overturned the sodomy laws of the several states who hadn’t already eliminated them. Those laws were actually enforced throughout most of US history.
Here’s a book suggestion has more on this topic:
Jonathan Ned Katz, Gay American History: Lesbians and Gay Men in the U.S.A. (New York: Meridian Books, 1992). You can learn about how the founder of the Democratic Party wanted to liberalize the sodomy law in Virginia. Thomas Jefferson want to change the punishment for sodomy from death to castration.
thuja on May 27, 2009 at 5:18 PM
Well, since the Mormon church supported polygamy (and it is still part of your doctrine), wouldn’t it have been better for them to follow the law of the land?
Spousal privilege was suspended (for polygamists) in the mid 1800′s with the Edmund-Tucker Act.
It dissolved the Mormon Church because the Church was advocating the breaking of law.
The U.S. Supreme court upheld that ruling…hard to argue a Church is a legal entity when it was promoting the breaking of a fundamental social and legal law.
It is so wrong to break a law, then ask that other laws be applied so they can continue breaking the law.
I didn’t know the Nazi’s were polygamists…
Yes, it is terrible, they even required the Mormon church to confirm their marriages with a civil certificates, just like other churches….those brutes.
Cute, next time pick a religion that can follow moral codes…meanwhile, your founder and his followers were marrying 13 or 14 year old children…I am sure it was for “God’s” purpose…
right2bright on May 27, 2009 at 5:19 PM
If the Mormon’s had followed the law, they would not have been prosecuted…it is very simple.
It was against the law to be a polygamist…AGAINST THE LAW…why would they not prosecute an organization bent on not following federal and state law? No church is above the law…
right2bright on May 27, 2009 at 5:23 PM
Vanceone hasn’t even gotten into the conduct endorsed by our US Govt with respect to non-marital cohabitation, or AKA Cohab Hunters or in the Senate hearings of Reed Smoot. He’s right – if you want a good grounding of what history should teach you about the Feds and your “rights”, study late 1800, early 20th century events.
SkinnerVic on May 27, 2009 at 5:23 PM
Yes, but not by the US government.
Esthier on May 27, 2009 at 5:25 PM
I was wondering when you were going to show up with your bitter, inaccurate rendition of Mormon theology and history. Never a real party until our Christ-like Lutheran lady shows up to crap on folks.
SkinnerVic on May 27, 2009 at 5:26 PM
thuja -
The States banned Sodomy not because they hate gays, but because it was “unclean”. Sodomy is not just butt sex, its oral. Basically anything other than Vaginal sex = sodomy .
For anything else was considered “unnatural”
So regardless of simple definition, you seem to be either very unintelligent, or willfully ignoring the proof and statements.
The guy said the Mormon belief and church has been more wronged by OUR GOVERNMENT, which is the USA.
You seem to equate this as “gays have been more wronged by INDIVIDUALS .
In my opinion, WHO GIVES A RATS, I think Mormon’s are batshit crazy. I also think homosexuality as a perversion along the lines of rapist and pedophiles. But these are my opinions, and my personal beliefs.
It is true the Mormons were killed and treated like crap by OUR GOVERNMENT, and believe it or not, even today MANY people look down on Mormons much like a cult. Proof? Man will not shake rommney’s hand due to being a morman.
This Country was founded on Christian beliefs … unfortunately the Bible looks down on homosexuals… but it is more strongly worded against false prophets which is what Mormonism is based upon. So that’s why Mormons got treated so bad by OUR GOVERNMENT, not just by individuals;which treat Gays and Mormons like second class citizens.
So lets not cry about who got abused more , and lets just try and better ourselves … and by that I mean stop being mormon and stop CHOOSING to take it in the butt.
Donut on May 27, 2009 at 5:51 PM
The chance of divorce increases as some function of the number of relationships (i.e., any irreconcilable difference between husband-wife#1, husband-wife#2, husband-wife#3, wife#1-wife#2, wife#1-wife#3, etc. can prompt the divorce) so increases somewhat faster than just linearly.
The statistical chance that brother-sister couplings will produce birth defects is one compelling interest the state has in outlawing such marriages.
Each type of restriction the state puts on marriage will generate a different compelling interest argument–siblings, multiple partners, inter-racial, gays. Ending one type of restriction doesn’t compel the ending of all restrictions.
dedalus on May 27, 2009 at 5:52 PM
Once in a while one can find a rational and compelling argument on HA; not often, but nice to see one again.
trailboss on May 27, 2009 at 5:58 PM
In this country destroying the union is what is required for a man who wants to marry multiple women in his life. He simply does it in a serial fashion often roughly correlating to the women’s fertile years.
It doesn’t take a large leap for someone to look at divorce and say that it achieves a result similar to polygamy.
dedalus on May 27, 2009 at 5:59 PM
You display a great example of schizophrenic argumentation – swing one way then the other, then back again, then out into left field. Good for you.
trailboss on May 27, 2009 at 6:01 PM
Of course it doesn’t, if your only view of polygamy is that of someone like ugh Hefner.
But how is that any different than seeing all gays as Folsom Street gays?
Women over 45 are nearly four times more likely to produce a child with a birth defect, but there is no reason to believe we would ever take away her right to procreate.
And the risk you mention is 2.6%. There’s a 97% chance the children will not have a defect.
Esthier on May 27, 2009 at 6:07 PM
Actually, in some states the law only applied to those who weren’t married or only to anal sex. There was little uniformity there.
Esthier on May 27, 2009 at 6:09 PM
Because we aren’t talking about giving legal sanction to Folsom itself. We are talking about giving legal sanction to polygamy which involves one man & many women or one women and many man or, perhaps, each man having many wives and each wife having many husbands. It is difficult to discuss every permutation at once, so I’m referring to the type that seems to predominate in history and which would have to be dealt with if polygamy were legalized. If there were a separate initiative to legalize only polyandry, perhaps that would work better.
dedalus on May 27, 2009 at 6:23 PM
Here’s a bold idea. No nation, state, or local entity has the right to exclude or hinder biological relationships that might result in the procreation of the species. Anything else is up for grabs.
highhopes on May 27, 2009 at 6:23 PM
If siblings ever sued for the right to marriage, perhaps the courts would consider that line of argument. If, say, the siblings were separated at birth and then met and fell in love as adults people might find the case compelling. However, it would have a different set of criteria than SSM.
dedalus on May 27, 2009 at 6:29 PM
o, well I tried to make it so you knew when i was arguing a point and being logical, and when i was giving my own illogical opinion for which I can not really give facts to back up. But I don’t have to back them up because… they are mine :)
Donut on May 27, 2009 at 6:35 PM
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